Opinion
89-R-99038-SCT
04-13-2023
IN RE: MISSISSIPPI RULES OF CRIMINAL PROCEDURE
ORDER
JAMES W. KITCHENS, PRESIDING JUSTICE
This matter is before the Court, en banc, on the Court's own motion.
On February 3, 2023, the Court issued a request for public comment on proposed amendments to the Mississippi Rules of Criminal Procedure. After due consideration, the Court finds that, in the interest of promoting the fair and efficient administration of justice, the Mississippi Rules of Criminal Procedure should be, and they hereby are, amended in accordance with Exhibit A, which by reference is incorporated into and made a part of this order. Such amendments shall take effect on July 1, 2023.
The Clerk of this Court shall spread this order and the amended rules attached hereto upon the minutes of the Court and provide a certified copy to West Publishing Corporation for publication in the advance sheets of Southern Reporter, Third Series (Mississippi Edition), and in the next edition of the Mississippi Rules of Court.
SO ORDERED.
ALL JUSTICES AGREE.
EXHIBIT A
MISSISSIPPI RULES OF CRIMINAL PROCEDURE
RULE 7 COUNSEL
Rule 7.2 Procedure for Appointment of Counsel for Indigent Defendants; Appearance; Withdrawal
(a) Procedure for Appointment of Counsel for Indigent Defendants.
(1) Generally. A procedure shall be established in each circuit, county, municipal, and justice court for the appointment of counsel for each indigent defendant entitled thereto.
(2) Appointment of Multiple Attorneys. In all death penalty trial proceedings, the court shall appoint two (2) attorneys pursuant to the standards in Rule 7.4. At the time of the appointment, and subject to court approval, the appointed attorney may recommend cocounsel so long as co-counsel is willing to accept the appointment and meets all of the requirements of Rule 7.4. If the appointed attorney does not recommend co-counsel upon accepting an appointment, the court shall select co-counsel. In non-death penalty cases, the appointment of multiple attorneys is within the discretion of the court.
(b) Entry of Appearance. At or before a first appearance in any court on behalf of a defendant, an attorney, whether privately retained or court-appointed, shall file an entry of appearance or, in lieu thereof, the court shall note the attorney's appearance on the record.
(c) Duty of Continuing Representation. Counsel representing a defendant at any stage following indictment shall continue to represent that defendant in all further proceedings in the trial court case, including filing a notice of appeal, unless counsel is allowed to withdraws for good cause as approved by the court and new counsel is retained or appointed (unless the right to counsel has been properly waived pursuant to Rule 7.1(c)).
(d) Withdrawal. When an attorney makes an appearance for any party in a case, that attorney will not be allowed to withdraw as attorney for the party without the permission of the court. The attorney making the request shall give notice to his/her client and to all attorneys in the cause and certify the same to the court in writing. The court shall not permit withdrawal without prior notice to his/her client and all attorneys of record.
Comment
Rule 7.2(a) requires that each circuit shall establish governing local procedures for the appointment of counsel for indigent defendants. Local court rules are promulgated pursuant to Rule 1.9.
Rule 7.2(c) effectuates a defendant's right to be represented by counsel in any criminal proceeding and through all stages of the criminal process. See MRCrP 7.1(a) & cmt. contemplates that the usual procedure will be that, following indictment, Apart from court-approved withdrawal, counsel will continue to represent the defendant through all stages of the triail proceedings case, including filing a notice of appeal. See M.R.A.P. 6(b). In addition to being familiar with the case, continued representation guarantees that a defendant's right of appeal is not lost in the period between termination of trial counsel's responsibilities and retention or appointment of appellate counsel.
Nothing in Rule 7.2 limits the ability of a court to establish a procedure pursuant to Rule 7.2(a)(1) for appointing an attorney to represent a defendant for a limited purpose or time, after which another attorney is appointed or retained to represent the defendant for subsequent proceedings. In that event, trial counsel should be substituted as soon as practicable and continuous representation must be preserved.
Rule 7.2(d) is consistent with former Rule 1.13 of the Uniform Rules of Circuit and County Court Practice, Normally, appointed counsel will not be permitted to withdraw prior to filing a notice-of appeal: If the court allows counsel to withdraw, the court shall see that new counsel is retained or appointed before granting permission to withdraw, unless the right to counsel has been properly waived pursuant to Rule 7.1(c). In this way, subsection (d) maintains the integrity of the trial date, while also protecting the interests of the defendant and aiding the trial court in providing continuity in legal representation.
Nothing in Rules 7.2(c) or (d)-limits-the ability' of a court to appoint-an attorney to represent a defendant for-a limited purpose or time, after which another attorney is appointed or retained to represent the defendant for subsequent proceedings.